Case: 09-30484 Document: 00511391857 Page: 1 Date Filed: 02/23/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 23, 2011
No. 09-30484 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff – Appellee
v.
NAM VAN HOANG,
Defendant – Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
Before JONES, Chief Judge, JOLLY and GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Appellant Nam Van Hoang (“Hoang”) appeals from his conviction for
failure to register pursuant to the Sex Offender Registration and Notification Act
(“SORNA”). Hoang was convicted of a sex offense and registered as a sex
offender under state law prior to the enactment of SORNA, which requires a sex
offender to register in each jurisdiction where he resides and to keep his
registration current. Section 2250 of Title 18 prohibits sex offenders who are
required to register under SORNA from traveling in interstate commerce and
knowingly failing to register. Hoang’s interstate travel took place after SORNA’s
enactment but before the Attorney General issued an Interim Rule declaring
SORNA applicable to all sex offenders whose underlying sex-offense convictions
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No. 09-30484
predate SORNA’s enactment. There is a split of authority among the courts of
appeals as to whether SORNA’s registration requirements became effective to
already-registered, pre-SORNA sex offenders (1) on the date SORNA was
enacted, or (2) when the Attorney General issued the Interim Rule declaring
SORNA retroactive. We hold that Hoang did not become subject to SORNA’s
registration requirements until the Attorney General issued the Interim Rule.
We reverse the judgment of the district court and remand for entry of an order
of dismissal.
I.
The facts of this case are undisputed. On May 13, 2005, Hoang was
convicted in Orleans Parish Criminal Court of two counts of attempted
aggravated crimes against nature, in violation of Louisiana Revised Statute
14:89:1. This conviction renders him a sex offender as defined by SORNA.
Hoang was sentenced to 30 months in prison and a term of supervised release.
He was further ordered to register as a sex offender, which he did prior to
release from prison. Before his release, Hoang was informed of his obligation
(under his state-law conviction and sentence) to register with his new parish or
county of residence in the event that he moved; he was further informed that he
was required to update his registration with Orleans Parish annually and to
notify his previous parish or county of residence if he ever moved.
At some point after May 18, 2005, Hoang moved to Lubbock, Texas. On
June 22, 2006, Lubbock police learned that Hoang was a sex offender who had
not registered in the City of Lubbock or State of Texas. Hoang was then
compelled to register as a sex offender with the State of Texas, and was once
again informed of his obligations to notify his current jurisdiction as well as his
receiving jurisdiction in the event that he changed his residence. SORNA was
enacted on July 27, 2006, setting forth registration requirements for sex
offenders under federal law.
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Lubbock police were informed on December 1, 2006 that Hoang had moved
from his residence, and that his whereabouts were unknown. At that point he
was placed in absconder status for failing to notify the local sex offender unit
that he had changed addresses. Texas law enforcement later notified a Deputy
United States Marshal that Hoang had obtained a Louisiana driver’s license on
July 11, 2007, and that the license showed a Baton Rouge address. The deputy
marshal discovered that Hoang had not registered with the relevant local or
state authorities in Louisiana, as required by SORNA. On September 25, 2007,
the deputy marshal located Hoang at the Baton Rouge address listed on his
license and brought him to be registered with the Louisiana State Police Sex
Offender Registration Unit. Hoang admitted at that time that he had been
living in Baton Rouge for nine to twelve months and that he had not registered
as a sex offender.
Hoang was indicted for failure to register as a sex offender in the State of
Louisiana from on or about July 11, 2007 until on or about September 24, 2007,
in violation of 18 U.S.C. § 2250(a). Hoang filed a motion to dismiss the
indictment and challenged the constitutionality of SORNA. His motion was
denied. Pursuant to a conditional plea agreement reserving his right to appeal
the district court’s ruling on his motion to dismiss, Hoang pleaded guilty to the
charge and was convicted. This appeal under 28 U.S.C. § 1291 timely followed.
II.
Under SORNA, a person convicted of a sex offense is required to register
as a sex offender and to keep the registration current in each jurisdiction where
the offender resides. 42 U.S.C. § 16913. It is a criminal offense, punishable by
up to ten years of imprisonment, for anyone who is required to register and
travels in interstate commerce to knowingly fail to register or update a
registration. 18 U.S.C. § 2250(a). Sex offenders must initially register before
completing their term of imprisonment for the underlying sex offense or, if not
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incarcerated, within three business days after sentencing. 42 U.S.C. § 16913(b).
Furthermore, 42 U.S.C. § 16913(d), entitled “Initial registration of sex offenders
unable to comply with subsection (b) of this section,” provides that
[t]he Attorney General shall have the authority to specify the
applicability of the requirements of this subchapter to sex offenders
convicted before the enactment of this chapter or its implementation
in a particular jurisdiction, and to prescribe rules for the
registration of any such sex offenders and for other categories of sex
offenders who are unable to comply with subsection (b) of this
section.
42 U.S.C. § 16913(d).
Pursuant to the foregoing authority, the Attorney General issued an
Interim Rule on February 28, 2007 (“Interim Rule”), which provided that the
requirements of SORNA “apply to all sex offenders, including sex offenders
convicted of the offense for which registration is required prior to the enactment
of [SORNA].” 28 C.F.R. § 72.3. The instant dispute concerns the scope of
SORNA and the applicability of this Interim Rule. Specifically, we are asked
whether SORNA applies to a convicted sex offender who fails to register when
(1) the offender’s predicate sex-offense conviction predated the enactment of
SORNA, (2) the offender was registered as a sex offender prior to the enactment
of SORNA, and (3) the offender traveled in interstate commerce after SORNA’s
enactment but prior to the date on which the Attorney General promulgated the
Interim Rule declaring SORNA applicable to sex offenders whose underlying
convictions predate SORNA.
A.
In Carr v. United States, 130 S.Ct. 2229 (2010), the Supreme Court held
that SORNA does not apply to persons with pre-SORNA sex-offense convictions
whose interstate travel occurred prior to the enactment of SORNA. However,
the Court explicitly declined to rule upon whether a sex offender whose
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interstate travel occurred in the gap between SORNA’s enactment and the
Attorney General’s promulgation of the Interim Rule falls within the ambit of
SORNA’s criminal prohibition on failure to register. See id. at 2234 n.2. The
courts of appeals have divided on this question, and this panel is the first to
consider it since Carr was decided.
The core dispute before us is when the statute became applicable to
Hoang—that is, whether action by the Attorney General was required as a
condition precedent to the enforcement of SORNA against all sex offenders who
traveled between July 27, 2006 and February 28, 2007. Four circuits have held
that sex offenders whose convictions predate SORNA did not become subject to
SORNA’s registration requirements until the Attorney General issued the
Interim Rule in February 2007. See United States v. Hatcher, 560 F.3d 222,
226–29 (4th Cir. 2009); United States v. Cain, 583 F.3d 408, 414–19 (6th Cir.
2009); United States v. Dixon, 551 F.3d 578, 582 (7th Cir. 2008), rev’d on other
grounds, United States v. Carr, 130 S.Ct. 2229 (2010); United States v. Madera,
528 F.3d 852, 857–59 (11th Cir. 2008) (per curiam). Two circuits have held that
sex offenders whose convictions predate SORNA became subject to SORNA’s
registration requirements upon SORNA’s enactment in July 2006. See United
States v. May, 535 F.3d 912, 915–19 (8th Cir. 2008); United States v. Hinckley,
550 F.3d 926, 929–35 (10th Cir. 2008).
B.
We are persuaded that the text of subsection (d) clearly authorizes the
Attorney General to specify whether and how SORNA (and not just the statute’s
initial registration requirements) applies to pre-SORNA sex offenders such as
Hoang. Hoang therefore did not become subject to SORNA until the Attorney
General issued the Interim Rule, after the interstate travel on which Hoang’s
conviction is based.
As we earlier noted, subsection (d) reads thus:
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The Attorney General shall have the authority to specify the
applicability of the requirements of this subchapter to sex offenders
convicted before the enactment of this chapter or its implementation
in a particular jurisdiction, and to prescribe rules for the
registration of any such sex offenders and for other categories of sex
offenders who are unable to comply with subsection (b) of this
section.
42 U.S.C. § 16913(d). As the Fourth Circuit has observed, the first clause of
subsection (d) provides that the Attorney General “shall,” prospectively, have the
authority to specify whether and how SORNA applies to pre-SORNA sex
offenders. Hatcher, 560 F.3d at 227. Plainly, this authority is altogether distinct
from that granted in the second clause of subsection (d), which authorizes the
Attorney General to prescribe rules for the registration of (1) “any such sex
offenders,” that is, any sex offenders whose convictions predate SORNA’s
enactment; and (2) “other categories of sex offenders” who are unable to comply
with the initial registration requirements of subsection (b). Id. See also
Hinckley, 550 F.3d at 949–50 (McConnell, J., dissenting); Madera, 528 F.3d at
858. The instant dispute implicates only the first of these two clauses. We are
concerned not with particular rules for registration but with whether “this
subchapter” applied to Hoang, a pre-SORNA sex offender, such that he was
subject to SORNA’s registration requirements at the time he traveled in
interstate commerce. “This subchapter” refers to “the entirety of SORNA—not
just the initial registration requirements.” Hinckley, 550 F.3d at 951–52
(McConnell, J., dissenting).
Two other circuits have held that sex offenders who were registered under
state law prior to SORNA’s enactment, and therefore were not subject to the
initial registration requirements of subsections (b) and (d), were required to
register under subsection (a) of 42 U.S.C. § 16913 as of the date on which
SORNA was enacted. May, 535 F.3d at 918–19; Hinckley, 550 F.3d at 935.
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Subsection (a) contains the general requirement that sex offenders register and
keep their registration current in their jurisdiction of residence. 42 U.S.C.
§ 16913(a). Courts that have applied SORNA to pre-SORNA sex offenders by
way of subsection (a) have reasoned that a sex offender who was already
registered under state law at the time of SORNA’s enactment is not subject to
the initial registration requirements referenced in subsections (b) and (d).
However, this conclusion overlooks the plain language of subsection (d), the first
clause of which does not deal with initial registration at all. That clause—the
only clause conferring the authority implicated in this appeal—deals with the
applicability of all of SORNA, including subsection (a), to sex offenders like
Hoang who were convicted before SORNA’s enactment. The clause gives the
Attorney General the authority to specify the retroactive application of all
subsections of SORNA to pre-SORNA sex offenders. Until the Attorney General
did so by promulgating the Interim Rule in February 2007, SORNA did not
apply to Hoang.
C.
In reaching the foregoing conclusion, we need not look beyond the plain
text of subsection (d). Courts that have found that state-law-registered, pre-
SORNA sex offenders became subject to SORNA on the date of its enactment
have done so by looking to the title of subsection (d) to limit the scope of that
subsection to pre-SORNA sex offenders who were unable to comply with the
initial registration requirements.1 We find reference to the subtitle unnecessary
1
The title of subsection (d) is “Initial registration of sex offenders unable to comply with
subsection (b) of this section.” As an initial matter, we agree with the Fourth Circuit that
there is no necessary conflict between this title and our reading of the statutory text, since the
title refers to the authority to set registration rules, an authority conferred in the second
clause of subsection (d), but not to the authority to specify SORNA’s applicability to
pre-SORNA sex offenders, which is conferred in the first clause. “Nothing in the title is
inconsistent with the literal meaning of the statute, nor is the limited nature of the title
especially significant.” Cain, 583 F.3d at 416.
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and inappropriate because, as explained above, we find no ambiguity in
subsection (d). See, e.g., INS v. St. Cyr, 533 U.S. 289, 308–09 (2001);
Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212 (1998) (“[T]he title
of a statute . . . cannot limit the plain meaning of the text. For interpretive
purposes, [it is] of use only when [it] shed[s] light on some ambiguous word or
phrase.” (internal quotation marks and citations omitted)). Courts that have
interpreted subsection (d) to be ambiguous have done so by reading what they
perceive to be an ambiguity in the second clause of the subsection to create an
ambiguity in the first clause. Specifically, these courts have found that the
phrase “other categories of sex offenders who are unable to comply with
subsection (b)” means other categories of sex offenders who are also unable to
comply with the initial registration requirements of subsection (b). This phrase
modifies the phrase “any such sex offenders,” which in turn refers to the phrase
used in the first clause of subsection (d), “sex offenders convicted before the
enactment of this chapter.” The courts have reasoned that the phrasing of the
second clause limits the scope of the first clause to those pre-SORNA sex
offenders unable to comply with the initial registration requirements. See
Hinckley, 550 F.3d at 929–35; May, 535 F.3d at 916–19.
We respectfully disagree. “‘Other categories of sex offenders’ plainly
means types of sex offenders not encompassed within the former category, that
is, those who are not past offenders.” Hinckley, 550 F.3d at 951 (McConnell, J.,
dissenting) (emphasis added). To read the statute otherwise “ignores the key
term ‘other,’ which indicates that the two categories are distinct.” Id. See also
Cain, 583 F.3d at 415. We do not disregard “the cardinal rule that a statute is
to be read as a whole, . . . since the meaning of statutory language, plain or not,
depends on context.” King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991). We
simply conclude that nothing in the second clause of subsection (d) or the
broader context of SORNA requires us to strip the first clause of its plain
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meaning and replace it with a contradictory one.
III.
In the alternative, we hold that to the extent SORNA may be ambiguous,
the rule of lenity requires that we interpret the statute in Hoang’s favor.
Notwithstanding our conclusion that 42 U.S.C. § 16913(d) is clear, we recognize
that two other circuits disagree and would interpret the statute to include Hoang
within its ambit at the time of enactment. It is familiar learning that “[a]
statute is ambiguous if it is susceptible to more than one reasonable
interpretation or more than one accepted meaning.” In re Condor Ins. Ltd., 601
F.3d 319, 321 (5th Cir. 2010) (internal quotation marks and citations omitted).
We recognize, of course, that “[a] statute is not ‘ambiguous’ for purposes of lenity
merely because there is a division of judicial authority over its proper
construction.” Reno v. Koray, 515 U.S. 50, 64–65 (1995) (internal quotation
marks and citation omitted). Nevertheless, insofar as the reasoning of other
circuits may reveal that SORNA is susceptible to “more than one accepted
meaning,” the question of whether SORNA applies to a pre-SORNA sex offender
whose interstate travel took place prior to the promulgation of the Interim Rule
is, at best, ambiguous. “The rule of lenity requires ambiguous criminal laws to
be interpreted in favor of the defendants subjected to them.” United States v.
Santos, 553 U.S. 507, 514 (2008). See also Cain, 583 F.3d at 417 (holding, with
respect to SORNA, that insofar as ambiguity “clouds the meaning of a criminal
statute, the tie must go to the defendant”) (internal quotation marks and
citations omitted). In the light of these observations, we hold that any residual
ambiguity in SORNA discernible from the conflicting decisions of our sister
circuits must be read in Hoang’s favor.
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IV.
Defendant Hoang, a sex offender registered under state law prior to the
enactment of SORNA, traveled in interstate commerce and failed to register in
his new jurisdiction after SORNA’s enactment but before the Attorney General
issued an Interim Rule declaring SORNA applicable to all sex offenders whose
underlying sex-offense convictions predate SORNA’s enactment. Hoang’s
conviction under 18 U.S.C. § 2250 was based on the premise that he was
required to register under SORNA at the time of his interstate travel. We hold
today that this premise is flawed. The defendant did not become subject to
SORNA’s registration requirements until the Attorney General issued the
Interim Rule in February 2007 that made SORNA retroactive. Subsection (d)
of 42 U.S.C. § 16913 clearly authorizes the Attorney General to specify whether
and how SORNA applies to pre-SORNA sex offenders such as Hoang. Because
the meaning of subsection (d) is plain, we need not look beyond the statutory text
in construing the statute. Moreover, to whatever extent SORNA may be
characterized as ambiguous, the rule of lenity requires that we interpret the
statute in Hoang’s favor. In the light of these considerations, we REVERSE the
judgment of the district court and REMAND for entry of an order of dismissal.
REVERSED and REMANDED.
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